U.S. Attorney General Eric Holder and Sen. John Cornyn butt heads over whether prosecutors 'bullied' hacktivist

InfoWorld|Mar 8, 2013

U.S. Attorney General Eric Holder this week strained to convince Senators that federal prosecutors exercised "good prosecutorial discretion" in handling the indictment of 26-year-old Aaron Swartz. Yet his testimony before the Senate Judiciary committee raised more questions than it answered.

Sen. John Cornyn (R-Texas) drove home that point as he pressed the Attorney General about whether prosecutors had "bullied" Swartz with the threat of a long sentence for "rather minor" alleged crimes. Holder countered that a plea deal had been offered to Swartz -- and rejected -- in which Swartz would have had to serve just three months' time.

At a broader level, the exchange between the Attorney General and the Judiciary Committee shines a spotlight on inconsistencies in the justice system. Cyber criminals seem to face disproportionately aggressive prosecution and sentencing -- while major financial institutions that had a role in creating the financial crisis remain, by the attorney general's own admission, untouchable.

Was the plea deal real?

Swartz took his own life last January after facing 13 felony charges in a Massachusetts federal court -- including computer intrusion, wire fraud, and data theft -- stemming from allegations that he stole millions of scholarly articles and documents from an MIT subscription-based service called JSTOR. He potentially faced 35 years of jail time, along with a fine of up to $1 million.

Holder defended the way U.S. Attorney Carmen Ortiz and her team handled the indictment against Swartz. He assured senators that Swartz had offered several different plea bargains, starting with one for a three-month sentence presenting Swartz with the indictment. "After ... the indictment, an offer was made that he could plead and serve four months. Even after that, a plea offer was made of a range of from zero to six months that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of six months," Holder said.

Holder's testimony prompted Cornyn to ask one of the key questions of the entire case: "Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a three- or four-month prison sentence?"

Holder sidestepped the question, but he assured the committee that his office had performed a thorough investigation of how federal prosecutors handled the Swartz case. He said the prosecutors -- who took over the case from the Middlesex County district attorney's office -- employed a "good use of prosecutorial discretion" in offering the various plea deals that were "consistent with what the nature of [Swartz's] conduct."

Why the ton of bricks?Holder's assurances didn't satisfy Cornyn, and understandably so. Consider what Swartz allegedly did: He entered a server room on the MIT campus, connected his computer to the network, and used his legitimate, unlimited access to JSTOR to download 4.8 million documents. He didn't hack anything. He didn't make and distribute illegal copies. The worst thing Swartz may have done is trespass.